Page 40 - May June 2019 TPA Journal
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denied the State’s request. The vehicle’s forfeiture,  SEARCH & SEIZURE – CELL PHONE
        the court determined, would be grossly dis -         SEARCH WITH WARRANT
        proportionate  to  the  gravity  of  Timbs’s  offense,
        and therefore uncon stitutional under the Eighth      A jury convicted Charles Fulton, Sr. on four
        Amendment’s Excessive Fines Clause.                  counts of sex trafficking and one count of
                                                             conspiracy. The most significant issue concerns a
        [emphasis by ed.]                                    long-delayed search of his cell phone. We find no
                                                             basis to disturb the judgment. We AFFIRM.
        The holding was upheld by the State appellate
        court and reversed by the State Supreme Court        In May 2016, Fulton was indicted in the U.S.
        which was, in turn, reversed by the U.S. Supreme     District Court for the Southern District of Texas
        Court. Note this was a 9-0 decision with Gorsuch     on six counts of sex trafficking in violation of 18
        and Thomas filing concurring opinions.               U.S.C. § 1591(a)–(b) (2015), with a different
                                                             minor victim identified in each count. He was
        The Fourteenth Amendment’s Due Process Clause        found guilty after a jury trial on four of the
        incorporates and renders applicable to the States    substantive counts and on the conspiracy count.
        Bill of Rights protections “fun damental to our      The district court sentenced him to prison for
        scheme of ordered liberty,” or “deeply rooted in     concurrent life terms.
        this Nation’s history and tradition.”
                                                             We will analyze four issues. First, Fulton asserts
        Protection against excessive fines has been a        the district court admitted evidence obtained from
        constant shield throughout  Anglo-American           his cell phone in violation of the Fourth
        history for good reason: Such fines undermine        Amendment.
        other liberties. They can be used, e.g., to retaliate
        against or chill the speech of political enemies.    In February 2015, Galveston police obtained a
        They can also be employed, not in service of penal   search warrant on the Avenue L house where the
        purposes, but as a source of revenue.  The his -     prostitution was based, but the warrant was part of
        torical and logical case for concluding that the     a separate investigation into Fulton’s narcotics
        Fourteenth    Amendment       incorporates    the    activities. Fulton’s cell phone was seized. Nine
        Excessive Fines Clause is indeed overwhelm ing.      days later, police obtained a second warrant to
        purposes, but as a source of revenue.  The his -     examine its contents but were unable to bypass the
        torical and logical case for concluding that the     phone’s security features. Around this same time,
        Fourteenth    Amendment       incorporates    the    the FBI agent assisting with the Fulton sex-
        Excessive Fines Clause is indeed overwhelm ing.      trafficking investigation learned that the
                                                             Galveston police had the phone.  The agent
        Timbs v. Indiana, No. 17-1091, U.S. Supreme          acquired it to determine if the FBI could access the
        Court, Feb. 20, 2019.                                phone’s  data.  Three  weeks  later,  that  agent
                                                             obtained a federal warrant to search the phone.
        ****************************************
                                                             Still, it was a year later before the data on the
        ******************************
                                                             phone was accessed. The FBI discovered evidence
                                                             on the phone that helped piece together Fulton’s
                                                             involvement with the minor victims. Fulton
                                                             moved to suppress the evidence, but the district
                                                             court denied the motion. At trial, the Government
                                                             introduced evidence of the phone’s contents
                                                             through the testimony of the FBI agent and of




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